Copyright and the TV tape

Have you ever recorded a program on your television and then watched it at a later time?

Silly question, isn’t it?

Of course you have. Even The Legal Genealogist has. We all have. It’s a common, accepted, simple process to be able to see a program we’re not home to see.

But that simple process was the subject of a major decision of the United States Supreme Court — a case decided 30 years ago last week1 … a case that still produces questions today.

And one of those questions came from a reader who is an archivist at a western genealogical library: “Can videotapes recorded legally at home — thanks to the Sony case — be donated to a library or other institution and made available for viewing, not for duplication, just like any other manuscript materials?”

The case the archivist refers to — a fight between Sony, which manufactured the Betamax home video recorder, and Universal Studios, one of the major movie producers — had initially produced a decision that the recording technology didn’t infringe copyright law.2 That decision was then reversed by the Ninth Circuit Court of Appeals.3

It was only when the case reached the Supreme Court that the decision was reached that changed the face of the entertainment world: it allowed the technology,4 and today more than half of all American homes have a digital video recorder.5

So… when we as genealogists start thinking about what we’re going to do with everything we own when we downsize or in our estate planning, what about those tapes? Can we, as our archivist friend asks, donate them to a library or other archives — and can the archives then make them available to others the way it would any donated materials?

And as with so many copyright questions, there’s an easy part and a hard part to the answer.

The easy part is: can we donate recordings we’ve made of television programs, and can a library or archives accept them, without running afoul of the law?

There’s little doubt that the answer there is yes. The federal copyright law has a specific provision that says that anyone who owns a legal copy of a copyrighted item “is entitled, without the authority of the copyright owner, to sell or otherwise dispose of the possession of that copy…”6 So, since the Sony case allows us as individuals to make the recordings in the first place for our own use, the law allows us to give those recordings away.

The hard part is: what can — and what should — a library or archives do with them? This is a harder question because the outer limits of that 30-year-old Supreme Court decision are still being explored by the courts. The Supreme Court just agreed this month to hear another case involving rebroadcasts via cloud computing.7

So I put the question to Peter B. Hirtle of Cornell University’s Copyright Information Center, who is also a Research Fellow in the Berkman Center for Internet & Society at Harvard University. Peter’s background is as an archivist himself — he holds an MA in History from Johns Hopkins and an MLS with a concentration in archival science from the University of Maryland and is a Fellow and Past President of the Society of American Archivists.

Like The Legal Genealogist, he shares his views as an individual only — “I am not giving legal advice,” he warns — and he suggests that the libraries and archives faced with a donation “use archival judgment.” He said:

If it is an important research collection and the material is not otherwise available for purchase, I think that scholarly concerns should prevail. I would be very restrictive, however, on how I might make the material available for research. Allowing people to view it on site would probably be okay; … (and in) certain cases, it may also be okay to make copies as fair use research copies. But if it is material that is available for purchase or through other licensed mechanisms (think someone’s collection of taped Simpsons episodes) and the primary purpose of the donation is to avoid paying for a commercial set, then I would have a problem.8

My own take is exactly the same: the institution isn’t going to be accepting a recording of a Superbowl game and then charging admission to show it to patrons in its auditorium. At least not legally! So it needs to consider why it would want a recording and what use its patrons might make of it.

For us as genealogists, then, the first question would be whether a recording would be of value to a library or archives. The answer to that might change depending on where we are and what kinds of recordings we might have. A library that specialized in the history of major league sports might be delighted to have the only existing recordings of an entire season of, say, the worst football team in history, while another library that didn’t have that focus and was geographically distant from the city where that team played might well not want the recordings at all.

As we make our donation decisions, we need to think history, think research, think value to the institution and its mission as a library or an archive.

And the library or archive, in turn, needs to think of the donation exactly the way it would any archival material: what value does it have, why would it use its space for this item (rather than telling a patron to buy a copy from the local store)?

And we all need to keep an eye out for court cases that might change the analysis down the road.

Who knows? Maybe someday that collection of taped Simpsons episodes might have another use…

14 Responses to Copyright and the TV tape

One of my hopes is that sometime before I die the Congress will find time to revisit our copyright laws. The bit from this post that triggers the thought (this time — all this alliteration is unintentional, by the way!) is the comment about whether or not the material is commercially available.

Once something has been published under the definition of copyright law, my view is that after so many years — 10 seems reasonable — if it is no longer being marketed or otherwise being made available then copyright should be voided. The purpose of the law is not to protect something’s “collectible” status, and if the copyright holder isn’t worried about gain from reproduction of the work then the whole premise of copyright pretty much disappears.

Note, though, that I say “pretty much” disappears. My 10-year limit would be limited to substantial copying. I would extend the limit on derivative works (I’m speaking here as one with musical expertise, thinking of someone doing an arrangement or a reorchestration of a piece of music).

Having just finished reviewing the book “Personal Digital Archiving” I was very attracted to this article. And, pleased to see your response fit right into that important conversation.

My one comment was regarding the reference to “use for research.” If the donor is a person of some note in any creative field, and at a later date, someone is doing research on the works of that person, having that person’s collected recordings “available for research” might be a critical element in gaining an understanding of how that person’s creative mind worked. This is an easily overlooked aspect to accepting and retaining such recordings in an archive.

Your discussion of how different archives would act differently, based on their place and mission, by the way, was excellent. Thank you for including that in your post.

Read some of the cases from the very first volumes of the United States Reports.

Example: Respublica v. Oswald, 1 U.S. (1 Dall.) 319, 320 – 321 (Pa., 1788) {Note: 1 U.S. reports cases from the Supreme Court of Pennsylvania before there was a United States Supreme Court.}.

“A transcript from the records was read to show that the action between Browne and Oswald was depending in the court; James Martin proved that the paper containing Oswald’s address was bought at his printing office, fresh and damp from the press; and a deposition, made by Browne, was read to prove the preceding facts relative to the cause of action, the hearing before Mr. Justice BRYAN, and the appeal from his order.

Lewis then adverted to the various pieces, which were charged as libellous in the depending action; and argued, that, though the liberty of the press was invaluable in its nature, and ought not to be infringed: yet, that its value did not consist in a boundless licentiousness of slander and defamation. He contended, that the profession of Browne, to whom the education of more than a hundred children was sometimes entrusted, exposed him, in a peculiar manner, to be injured by wanton aspersions of his character; and he inferred the necessity of the action, which had been instituted, from this consideration, that if Browne were really the monster which the papers in question described him to be, he ought to be hunted from society; but, that if he had been falsely accused, if he had been maliciously traduced, it was a duty that he owed to himself and to the public to vindicate his reputation, and to call upon the justice of the laws, to punish so gross a violation of truth and decency.”

In 1788, Alexander J. Dallas’s written recital of the events in the courtroom was the equivalent of an audio or video recording. Would the donation of the 1 U.S. (1 Dall.) tome raise any copyright wonk’s hackles today?

VHS tapes can be legally archived and recorded for personal home use. It’s my understanding of “Legal Copy” to mean, purchased or obtained through an approved distributor. A blank tape recording obtained from other means is lawful under the act without the transfer of that tape to anyone else (i.e. dvr, tevo, etc…). I can see the archival benefits, say something random occurs to the originals it would be great to know that someone had a copy of it. I’d still consult with the copyright office to ascertain any possible infringement beforehand.

I realized after reading this post that Judy and I both made an assumption, namely that “the Sony case allows us as individuals to make the recordings in the first place for our own use.” That is true, but only if those copies are being made for time-shifting purposes. Sony is silent on whether tapes can be kept for later use (what the decision calls “librarying”). We know that the the justices, when they first voted, were in favor of finding infringement even with time-shifting. It is hard to know if the eventual 5-4 decision in favor of Sony would have been changed if “librarying” had been a prominent part of the case, but that argument could be made. It is quite possible that in 1984 the judges felt that it was legal to record a show but not legal to keep a copy of that recording.

The uncertain legal status of creating personal libraries of programs is another reason why it is important to consider the commercial availability of recordings when making a donation. The absence of a commercial alternative would strengthen a fair use argument.

Absolutely true: and the cloud computing case to be heard this year may change the whole view of this. But I couldn’t agree more with the final comment and it bears repeating: “The uncertain legal status of creating personal libraries of programs is another reason why it is important to consider the commercial availability of recordings when making a donation. The absence of a commercial alternative would strengthen a fair use argument.”